Turning Out the Pocket

The pocket veto is a minor but useful weapon in the President's arsenal. The U.S. Constitution provides that a bill passed by Congress becomes law ten days after it is sent to the President--unless Congress is adjourned at the end of that period. If such is the case, the President can kill a bill by simply pocketing it--doing nothing. Andrew Johnson was the first to think of using the pocket veto during an intrasession recess. Last week, in a historic decision, the third branch of Government ruled that the pocket veto can be used only when Congress has adjourned without setting a date of return.

Upholding a lower court decision, the U.S. Court of Appeals in Washington declared that former President Nixon's pocket veto of a bill in 1970 was unlawful. The measure, a $225 million authorization for the training of family physicians, was passed overwhelmingly by both houses of Congress. Nixon, who objected to the bill on the ground that it would cost too much money, failed to sign it. By the deadline tenth day, Congress had recessed for a five-day Christmas holiday. Nixon then claimed that the bill was not law.

Senator Edward Kennedy, co-sponsor of the bill, was angry enough to take a dramatic step. He filed suit against the Administration in U.S. District Court in Washington and then argued the case himself on the assumption that nobody could plead for Congress more persuasively than one of its members. Nixon, he charged, had made "promiscuous use" of the pocket veto. In the past, most measures that had been vetoed in this fashion were usually not vital to the national welfare. But Kennedy considered his own bill to be a major undertaking. In addition, Nixon had vetoed the bill in the course of a very brief recess. "If the pocket veto can be applied to a five-day adjournment," argued Kennedy, "why should it not apply to an adjournment of three days or one day or even overnight? At stake is nothing less than an opportunity to take a stand against one aspect of the continuing erosion of congressional power."

In reply, the Justice Department maintained that President Nixon had done nothing that had not been done before and been accepted by Congress. Why single him out for attack? The courts were unmoved. The lower court ruled that the recess was too brief to justify a pocket veto. The appeals court went further. Since a pocket veto is a "departure from the central scheme of the Constitution," the court ruled that it could not be exercised during an "intrasession adjournment."

No further appeal by the White House to the U.S. Supreme Court is expected. It would probably fail and also be a contentious note on which to enter what the new President hopes will be "a good marriage" with Congress.

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